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Cyber spying thrives as mankind bids farewell to a private life

Filmmaker Laura Poitras stands on the stage as former NSA contractor turned whistleblower Edward Snowden is seen on a video conference screen during an award ceremony for the Carl von Ossietzky journalism prize on December 14, 2014 in Berlin, Germany. Poitras, Snowden and journalist Glenn Greenwald were awarded the prize by the International League for Human Rights. Photo: Adam Berry/Getty Images

William Marsden

Published: December 26, 2014 - 3:00 PM

Updated: December 27, 2014 - 10:05 AM

WASHINGTON – Eighteen months ago National Security Agency cyber spy Edward Snowden shocked the world when he emerged from the shadows to reveal the biggest government surveillance program mankind has ever known.

By collecting bulk data on phone calls, emails and other social media communications, the U.S. government was essentially monitoring the private lives of pretty well everybody with a phone and/or Internet connection. Americans, Canadians, Europeans, Asians – it didn’t matter. We had all come under suspicion.

Boosted by a decades-old intelligence gathering and sharing agreement called the “Five Eyes” – U.S., Canada, Britain, Australia and New Zealand – there was every reason to believe that not only was the U.S. sharing this information with its partners, but also these countries were watching their citizens with similar vigor.

The blowback was ferocious and U.S. President Barack Obama eventually promised action in 2014. The expectation was that the NSA would be reined in.

Well, 2014 has come and gone. What’s happened?

“Really shockingly little has been done,” said Liza Goitein, a surveillance law expert at the Brennan Center for Justice.

Bottom line is the government is still collecting your data.

The Internet, once viewed as freedom’s friend, has now become suspicious, a digitalized spy regime shattering traditional concepts of personal privacy and civil rights – and perhaps even democracy.

When even the most backward of countries – North Korea — can hack into a large high-tech company like Sony, what does that say about the future?

Harold Polham, a political scientist who specializes in surveillance at Dickinson College in Pennsylvania, has acquiesced to this new reality because it is the only world they know.

“In the next 10 years we may have lost our ability to put an end to this,” he said. “It’ll be a fait accompli.”

This inertia exists despite a U.S. report in January that was highly critical of the NSA. Produced by the long-forgotten Privacy and Civil Liberties Oversight Board, which the Bush administration created in 2007 to monitor the nation’s 16 intelligence organizations, it concluded that the NSA’s bulk data collection “lacks a viable legal foundation” and “has shown minimal value in the safeguarding of the nation from terrorism.”

The board said it could not identify a “single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

In other words, bulk collection didn’t work. Throwing out a dragnet only produced a lot of noise. It didn’t stop the Fort Hood attacks, the Boston Marathon bombing or the underwear bomber. And it failed to predict Islamic State preparations for the takeover of Iraq and Syria despite that organization’s defiant transparency on the Internet. And this was when the NSA cyber surveillance program was at its zenith.

Conclusion? The NSA bulk surveillance has had no impact on national security.

With that in mind, congress wrote two bills designed to rein it in. The senate bill, called the USA Freedom Act, was more muscular and gained White House support.

It outlawed the NSA’s bulk data collection business, albeit with a few loopholes. But while lawmakers voted 58 to 42 to debate the bill in the senate, it failed to make the 60-vote filibuster mark and died. A similar fate met the House bill.

In 2015, congress won’t be able to dodge the issue. The Patriot Act, whose section 215 is the acclaimed justification for the bulk surveillance, expires in June.

Polls show between 60 and 70 per cent of Americans think the NSA’s bulk spying is unacceptable. And so does corporate America.

Where congress has failed to act, high-tech companies have been trying to protect their reputations as safe guardians of privacy.

Early this year Google, Apple, Microsoft, Facebook, Twitter and Yahoo united to form the Reform Government Surveillance Coalition to lobby government to restrict NSA surveillance.

“The reality is these are publicly traded companies that owe a fiduciary obligation to their shareholders,” Goitein said. “They are mindful of their bottom line which is suffering quite badly, especially overseas, on the perception that the companies don’t protect their customers privacy.”

All of them are feeling the heat, particularly from EU countries already concerned about their monopolistic reach. When you add on the NSA surveillance program and the fact that the majority of Internet traffic finds its way through the U.S. and its Five Eyes partners, countries like Germany are considering their own closed national Internet network – or how to spell typewriter.

As a result, tech companies that once willingly cooperated with the NSA are now challenging their subpoenas in court. They are also offering increased protection to customers through encryption software.

There is also movement in the courts where three cases are challenging the legality of the bulk surveillance program.

“Up until now we have not even been able to get through the courthouse doors on surveillance because they couldn’t prove that any of these (bulk surveillance) programs existed let alone that (plaintiffs) were targeted by them,” Goitein said. “Snowden’s disclosures have in fact opened the courthouse doors.”

Two unanimous U.S. Supreme Court rulings this year indicate that the high court judges view seriously the protection of individual privacy on the Internet.

The cases involve the police tracking a suspect’s historical movements using the GPS from his cars and cellphones. In both cases, the data showed the targets had been present at murder scenes. The court ruled the evidence inadmissible because police had not obtained warrants.

Chief Justice John G. Roberts Jr. wrote in the judgment that cellphones are a gateway to a person’s private life. They are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

“Modern cell phones are not just another technological convenience,” he continued. “With all they contain and all they may reveal, they hold for many Americans the privacies of life”

If you define privacy as a person’s ability to control who sees his or her personal information and how it is used then the concept of privacy has changed. That control has been lost to corporations eager to market your data and shadowy government agencies casting about Stasi-like for suspicious behaviour.

The debate then is how to get it back. While little was achieved in 2014 to reclaim privacy, the debate rages on many fronts, which is exactly what Snowden wanted when he mass-leaked the NSA’s darkest surveillance secrets to an unsuspecting public.